A Constitution for the Common Good by W Elliot Bulmer sampler
But what is a constitution for? Is it a defensive charter to protect the basic structures of democratic government, or is it a transformative covenant for a better society? How can the constitution sustain democracy and promote ethical politics while at the same time recognising and accommodating differences in society? What difference would a good constitution make to the poor? In addressing these questions, this book sets out a vision for how Scotland could reconstitute itself. It emphasises the connection between the constitution, democracy and the common good, arguing that democratic self-government is the true prize, regardless of the relationship of Scotland to the rest of the UK. This book not only makes a vital contribution to Scotland’s current and on-going constitutional debate, a debate that still rages despite the referendum result, but also engages with fundamental questions of constitutionalism and democracy that are of enduring relevance to both citizens and scholars around the world.
But what is a constitution for?
Is it a defensive charter to protect the basic structures of democratic government, or is it a transformative covenant for a better society?
How can the constitution sustain democracy and promote ethical politics while at the same time recognising and accommodating differences in society?
What difference would a good constitution make to the poor?
In addressing these questions, this book sets out a vision for how Scotland could reconstitute itself. It emphasises the connection between the constitution, democracy and the common good, arguing that democratic self-government is the true prize, regardless of the relationship of Scotland to the rest of the UK. This book not only makes a vital contribution to Scotland’s current and on-going constitutional debate, a debate that still rages despite the referendum result, but also engages with fundamental questions of constitutionalism and democracy that are of enduring relevance to both citizens and scholars around the world.
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elliot bulmer, after graduating with an ma in Arabic and Politics<br />
from <strong>the</strong> University of Edinburgh, was commissioned as a Logistics<br />
Officer in <strong>the</strong> Royal Navy and served in Iraq as part of a psyops unit.<br />
After leaving <strong>the</strong> Navy, he completed a phd in Politics at <strong>the</strong> University<br />
of Glasgow while working as Research Director of <strong>the</strong> <strong>Constitution</strong>al<br />
Commission, a Scottish charitable organisation <strong>for</strong> constitutional<br />
education and research. He now works <strong>for</strong> <strong>the</strong> <strong>Constitution</strong> Building<br />
Programme of <strong>the</strong> International Institute <strong>for</strong> Democracy and Electoral<br />
Assistance in The Hague, Ne<strong>the</strong>rlands. He is <strong>the</strong> author of A Model<br />
<strong>Constitution</strong> <strong>for</strong> Scotland: Making Democracy Work in an Independent<br />
State (Edinburgh: Luath Press, 2011) and several articles on constitutional<br />
subjects in peer-reviewed academic journals, as well as being<br />
a frequent contributor to Scotland’s consti tutional debate in print<br />
and online.<br />
Luath Press is an independently owned and managed book publishing<br />
company based in Scotland, and is not aligned to any political party or<br />
grouping. Viewpoints is an occasional series exploring issues of current<br />
and future relevance. All opinions is this book are <strong>the</strong> sole opinions of<br />
<strong>the</strong> author and do not represent <strong>the</strong> position of International idea, <strong>the</strong><br />
<strong>Constitution</strong>al Commission or any o<strong>the</strong>r person or organisation.
A <strong>Constitution</strong> <strong>for</strong> <strong>the</strong><br />
<strong>Common</strong> <strong>Good</strong><br />
Streng<strong>the</strong>ning Scottish Democracy<br />
after <strong>the</strong> Independence Referendum<br />
W. ELLIOT BULMER<br />
Luath Press Limited<br />
EDINBURGH<br />
www.luath.co.uk
First published 2014<br />
New Edition 2015<br />
isbn: 978-1-910021-09-5<br />
The paper used in this book is recyclable. It is made from<br />
low chlorine pulps produced in a low energy, low emissions manner<br />
from renewable <strong>for</strong>ests.<br />
Printed and bound <strong>by</strong><br />
Bell & Bain Ltd., Glasgow<br />
Typeset in 11 point Sabon<br />
<strong>by</strong> 3btype.com<br />
The author’s right to be identified as author of this work under <strong>the</strong><br />
Copyright, Designs and Patents Act 1988 has been asserted.<br />
© W. <strong>Elliot</strong> <strong>Bulmer</strong>
How splendid and honourable it is to mediate on government and<br />
public administration, on which our well-being, our health and our<br />
life depend.<br />
francesco guicciardini,<br />
Dialogue on <strong>the</strong> Government of Florence, 1527<br />
For some men falsely persuading <strong>the</strong>mselves that bad governments<br />
are advantageous to <strong>the</strong>m, as most conducing to gratify <strong>the</strong>ir<br />
ambition, avarice, and luxury, set <strong>the</strong>mselves with <strong>the</strong> utmost art and<br />
violence to procure <strong>the</strong>ir establishment: and <strong>by</strong> such men almost <strong>the</strong><br />
whole world has been trampled underfoot, and subjected to tyranny,<br />
<strong>for</strong> want of understanding <strong>by</strong> what means and methods <strong>the</strong>y were<br />
enslaved. For though mankind take great care and pains to instruct<br />
<strong>the</strong>mselves in o<strong>the</strong>r arts and sciences, yet very few apply <strong>the</strong>mselves<br />
to consider <strong>the</strong> nature of government, an enquiry so useful and<br />
necessary both to magistrate and people. Nay, in most countries <strong>the</strong><br />
arts of state being altoge<strong>the</strong>r directed ei<strong>the</strong>r to enslave <strong>the</strong> people, or<br />
to keep <strong>the</strong>m under slavery; it is become almost everywhere a crime<br />
to reason about matters of government. But if men would bestow a<br />
small part of <strong>the</strong> time and application which <strong>the</strong>y throw away upon<br />
curious but useless studies, or endless gaming, in perusing those<br />
excellent rules and examples of government which <strong>the</strong> ancients have<br />
left us, <strong>the</strong>y would soon be enabled to discover all such abuses and<br />
corruptions as tend to <strong>the</strong> ruin of public societies. It is <strong>the</strong>re<strong>for</strong>e very<br />
strange that <strong>the</strong>y should think study and knowledge necessary in<br />
everything <strong>the</strong>y go about, except in <strong>the</strong> noblest and most useful of all<br />
applications, <strong>the</strong> art of government.<br />
andrew fletcher of Saltoun,<br />
A Discourse of Government With Relation to Militias, 1698
Acknowledgements<br />
Writing a book is a solitary endeavour, but producing a book – which<br />
involves turning <strong>the</strong> raw text into something publishable and readable – is<br />
always a joint ef<strong>for</strong>t. I particularly wish to thank: Dr Craig MacAngus<br />
and Dr Peter Lynch, both of <strong>the</strong> University of Stirling, <strong>for</strong> reviewing drafts<br />
and providing valuable feedback; John Drummond, of <strong>the</strong> <strong>Constitution</strong>al<br />
Commission, <strong>for</strong> his unstinting support; my parents, <strong>for</strong> <strong>the</strong>ir continued<br />
encouragement; Gavin MacDougall and <strong>the</strong> team at Luath Press, <strong>for</strong> <strong>the</strong>ir<br />
ef<strong>for</strong>ts in ensuring a swift turn-around from manu script to finished book;<br />
my colleagues at International idea, especially Sumit Bisarya and Professor<br />
Tom Ginsburg; and lastly but most importantly my wife Eva who has<br />
fulfilled <strong>the</strong> duties of scribe, editor, reference checker and caterer-in-chief<br />
with good cheer and patience.<br />
6
Contents<br />
Acknowledgements 6<br />
Preface to <strong>the</strong> Second Edition 9<br />
Introduction 13<br />
chapter one<br />
Does <strong>the</strong> <strong>Constitution</strong> still matter? 21<br />
i Independence, Democracy and <strong>the</strong> <strong>Constitution</strong> 23<br />
ii Independence, Sovereignty and Folkric 27<br />
iii The <strong>Constitution</strong>al Debate be<strong>for</strong>e <strong>the</strong> Independence Referendum 29<br />
iv <strong>Constitution</strong>alism without Independence? 36<br />
a A Federal United Kingdom 39<br />
b A New Treaty of Union 45<br />
c Home Rule 47<br />
chapter two<br />
How can <strong>Constitution</strong>s promote <strong>the</strong> common good? 52<br />
i The <strong>Common</strong> <strong>Good</strong> as <strong>the</strong> Purpose of <strong>the</strong> State 53<br />
ii What is <strong>the</strong> <strong>Common</strong> <strong>Good</strong>? 58<br />
iii <strong>Common</strong> <strong>Good</strong>, Pluralism and Pre-commitment 61<br />
iv Political Liberty as a <strong>Common</strong> <strong>Good</strong> 65<br />
chapter three<br />
How prescriptive should <strong>the</strong> <strong>Constitution</strong> be? 67<br />
i The Case <strong>for</strong> Procedural <strong>Constitution</strong>alism 67<br />
ii The Limits of Prescriptive <strong>Constitution</strong>alism 80<br />
iii The Relationship between Procedural and Prescriptive Elements 84<br />
chapter four<br />
How could <strong>the</strong> <strong>Constitution</strong> streng<strong>the</strong>n democracy? 93<br />
i Direct Democracy 95<br />
ii Representation and Inclusiveness 104<br />
iii Second Chamber: Senate or Tribunate? 117<br />
iv Local Democracy 124<br />
v Democratising Parties 127<br />
chapter five<br />
How can <strong>the</strong> <strong>Constitution</strong> promote good governance<br />
and accountability? 131<br />
7
a constitution <strong>for</strong> <strong>the</strong> common good<br />
i Parliamentary Scrutiny and Fourth Branch Institutions 131<br />
ii Recall and Popular Dissolution 139<br />
iii Prime Ministerial Term Limits 143<br />
iv Guarding <strong>the</strong> Guardians: Supervision of <strong>the</strong> Military<br />
and Security Services 146<br />
chapter six<br />
How can <strong>the</strong> <strong>Constitution</strong> reflect our values and identities? 152<br />
i The Preamble and Para-Consitutional Covenants 152<br />
ii Religion and State 159<br />
iii Monarchy and National Identity 170<br />
chapter seven<br />
How can <strong>the</strong> <strong>Constitution</strong> help us to achieve social justice,<br />
tackle poverty and reduce inequality? 177<br />
i Social and Economic Rights 177<br />
ii Judicial or Political En<strong>for</strong>cement 181<br />
iii Beyond Rights: Empowering <strong>the</strong> People 184<br />
chapter eight<br />
How can <strong>the</strong> <strong>Constitution</strong> promote public ethics? 187<br />
i The need <strong>for</strong> <strong>Good</strong> Citizenship 188<br />
ii Education <strong>for</strong> Citizenship 191<br />
iii Principles of Public Life and Codes of Conduct 194<br />
iv Public Honours 199<br />
chapter nine<br />
How can we build a new constitutional settlement? 201<br />
i Does process matter? 201<br />
ii Stages of <strong>the</strong> process 208<br />
iii Possible next steps 213<br />
appendices 219<br />
appendix a A <strong>Constitution</strong> <strong>for</strong> an Independent Scotland 221<br />
appendix b ‘A New Treaty of Union’ 270<br />
appendix c A Home Rule and Full Fiscal Autonomy Settlement <strong>for</strong><br />
Scotland 277<br />
appendix d A <strong>Constitution</strong> <strong>for</strong> a Federal United Kingdom 284<br />
Endnotes 325<br />
8
Preface to <strong>the</strong> Second Edition<br />
<strong>the</strong> first edition of this book appeared in August 2014, shortly be<strong>for</strong>e<br />
<strong>the</strong> referendum on Scottish independence. This second edition appears<br />
after <strong>the</strong> May 2015 uk general election, in which <strong>the</strong> Scottish National<br />
Party achieved nearly a clean sweep of Scottish seats (56 out of 59, leaving<br />
Labour, <strong>the</strong> Liberal Democrats and <strong>the</strong> Tories with just one seat apiece).<br />
Much has changed over <strong>the</strong> intervening period. As <strong>the</strong> referendum result<br />
was to many a great disappointment, so <strong>the</strong> general election result was a<br />
sign of hope. It was a sign that all was not lost, that Scotland has emerged<br />
from <strong>the</strong> last few years stronger and more self-confident, and that <strong>the</strong><br />
constitutional question is far from settled.<br />
The general election result is a sign, above all, that Scotland can no<br />
longer be dealt with in <strong>the</strong> old colonial way, with a mild sop here and a<br />
messy fudge <strong>the</strong>re. While <strong>the</strong> Tory establishment in London may wish to<br />
go back to <strong>the</strong> business of oligarchy as usual, <strong>the</strong> people of Scotland have<br />
sent a clear warning signal: ‘We stayed in <strong>the</strong> Union on <strong>the</strong> promise of<br />
radical and fundamental change; deliver it, quickly, or we will leave’. Even<br />
<strong>the</strong> most arrogant, blinkered and conceited of British Prime Ministers<br />
cannot fail to hear that warning. Whe<strong>the</strong>r <strong>the</strong>y have <strong>the</strong> sense to heed it,<br />
of course, is ano<strong>the</strong>r matter.<br />
It is clear, too, that <strong>the</strong> activism and engagement sparked <strong>by</strong> <strong>the</strong><br />
independence referendum has not dissipated. Membership of <strong>the</strong> Scottish<br />
National Party tripled in <strong>the</strong> few weeks following <strong>the</strong> vote, whilst membership<br />
of <strong>the</strong> Scottish Green Party doubled. The networks, plat<strong>for</strong>ms, media<br />
channels and organisations created <strong>by</strong> <strong>the</strong> referendum campaign have<br />
continued to exist. People are ‘not going back to <strong>the</strong>ir sofas’, as Robin<br />
McAlpine, leader of <strong>the</strong> <strong>Common</strong> Weal campaign, put it.<br />
Independence is off <strong>the</strong> agenda <strong>for</strong> now, but it might not remain so <strong>for</strong><br />
long. If Westminster fails to change its ways, and if it proves itself<br />
incapable of accommodating a free and autonomous Scotland within a<br />
re<strong>for</strong>med Union, <strong>the</strong>n one can imagine various scenarios in which <strong>the</strong><br />
demand <strong>for</strong> a second referendum on independence – or on a package of<br />
constitutional measures very close to independence – may become irresistible.<br />
Scotland’s First Minister, Nicola Sturgeon, has repeatedly stated that a<br />
9
a constitution <strong>for</strong> <strong>the</strong> common good<br />
vote <strong>for</strong> <strong>the</strong> snp in <strong>the</strong> general election was not a vote <strong>for</strong> independence,<br />
and that <strong>the</strong>re are no plans at present to hold a second independence<br />
referendum. This comes, however, with two very important caveats:<br />
firstly, that <strong>the</strong> snp manifesto <strong>for</strong> <strong>the</strong> 2016 Scottish Parliament election is<br />
yet to be written, and that manifesto might well outline conditions under<br />
which ano<strong>the</strong>r independence referendum would be held; and secondly,<br />
that a substantial change in circumstances – such as a vote on leaving <strong>the</strong><br />
European Union – might <strong>for</strong>ce a second independence referendum ra<strong>the</strong>r<br />
sooner than many had anticipated.<br />
Many of those who voted No in September 2014 did so only on a<br />
conditional basis, taking last minute interventions <strong>by</strong> <strong>for</strong>mer Prime<br />
Minister Gordon Brown as an indication that a No vote would guarantee<br />
much greater autonomy <strong>for</strong> Scotland within a radically re<strong>for</strong>med Union.<br />
A ‘solemn vow’ to this effect was publicly given <strong>by</strong> Brown and affirmed<br />
<strong>by</strong> <strong>the</strong> leaders of <strong>the</strong> Conservatives, Labour Party and Liberal Democrats.<br />
Thus <strong>the</strong> referendum can be interpreted not only as a rejection, <strong>for</strong> <strong>the</strong><br />
time being, of full independence, but also as an endorsement of substantial<br />
constitutional change within <strong>the</strong> uk. Even if a second referendum on<br />
independence is not <strong>for</strong>thcoming, <strong>the</strong> deep constitutional problems facing<br />
Scotland and <strong>the</strong> rest of <strong>the</strong> uk are not going to go away. Scotland is still<br />
unequally yoked to an ill-constituted fading imperial state, in which<br />
dissatisfaction is still growing and tensions between different countries<br />
and classes are increasing. An acceptable and democratic solution to this<br />
problem must be found be<strong>for</strong>e unacceptable solutions, of a regressive and<br />
anti-democratic nature, are imposed upon us.<br />
The snp group in <strong>the</strong> Westminster Parliament, in conjunction with <strong>the</strong><br />
Scottish Government, should push <strong>for</strong> <strong>the</strong> full implementation of <strong>the</strong> vow,<br />
taking advantage of <strong>the</strong> vow to claim <strong>the</strong> largest sphere of autonomy<br />
possible short of full independence. Now is <strong>the</strong> time to respond to <strong>the</strong><br />
Scottish public’s endorsement of fundamental change and to articulate a<br />
viable constitutional position that meets Scottish aspirations. There is an<br />
opportunity to capture <strong>the</strong> public imagination, to set <strong>the</strong> terms of debate,<br />
and to build a broad consensus around an intermediate position between<br />
independence and devolution that can unite both disappointed Yes voters<br />
and <strong>the</strong> broad swa<strong>the</strong>s of No voters who still want real change. This<br />
intermediate position would not be merely a transfer of limited powers<br />
10
preface to <strong>the</strong> second edition<br />
from one government and parliament to ano<strong>the</strong>r, as envisaged <strong>by</strong> <strong>the</strong><br />
lukewarm proposals of <strong>the</strong> Smith Commission, but a more radical<br />
reconfiguration of <strong>the</strong> state.<br />
This second edition <strong>the</strong>re<strong>for</strong>e contains a new section charting out three<br />
possible models of constitutional change that Scotland could pursue within<br />
<strong>the</strong> United Kingdom: a federal model, in which <strong>the</strong> uk would be reconstituted<br />
as an equal union of four nation states; a new Treaty of Union,<br />
which would provide <strong>for</strong> a bi-lateral relationship between Scotland and<br />
<strong>the</strong> rest of <strong>the</strong> uk, and a ‘Home Rule’ arrangement that would leave <strong>the</strong><br />
central institutions of <strong>the</strong> uk relatively unchanged, but greatly diminish<br />
<strong>the</strong>ir influence and control over Scotland. Which track we take depends<br />
partly on <strong>the</strong> willingness of Westminster to give ground and partly on <strong>the</strong><br />
extent to which <strong>the</strong> o<strong>the</strong>r parts of <strong>the</strong> uk wish to travel with us, but each<br />
of <strong>the</strong>se solutions could in principle deliver <strong>the</strong> secure and substantial<br />
autonomy <strong>for</strong> Scotland promised in <strong>the</strong> vow. This means that Scotland<br />
could be fully internally self-governing and self-financing, and have a<br />
constitutionally secured position that is not subject to <strong>the</strong> will of<br />
Westminster, while remaining part of <strong>the</strong> uk <strong>for</strong> <strong>the</strong> purposes of <strong>for</strong>eign<br />
affairs and defence, and while sharing a limited range of powers in<br />
relation to passports, citizenship, <strong>the</strong> currency and similar matters.<br />
The questions that were so energising and exciting be<strong>for</strong>e <strong>the</strong> referendum<br />
(What sort of country would we like to be? What sort of democracy do<br />
we need? How can we get <strong>the</strong>re?) are too important to be <strong>for</strong>gotten and<br />
swallowed up in unedifying partisan tussles over a pinch of stamp duty<br />
here or a peck of income tax <strong>the</strong>re. In taking this constitutional agenda<br />
<strong>for</strong>ward, whe<strong>the</strong>r in an independent Scotland or in an autonomous<br />
Scotland within a re<strong>for</strong>med and ‘loosely United’ Kingdom, we (<strong>by</strong> which<br />
I mean all who care about <strong>the</strong> freedom and well-being of Scotland, whe<strong>the</strong>r<br />
<strong>for</strong> or against independence) must take care to ensure that democratic<br />
constitutional change does not take a back seat to technocratic tinkering.<br />
In particular, we must not allow ourselves, or our political representatives,<br />
to become so embroiled in petty wrangling about ‘more powers’ that we<br />
fail to engage in a deeper discussion about values and principles, or about<br />
improving democratic processes and safeguarding fundamental rights.<br />
11
Introduction<br />
it is now nearly four years since my first book, A Model <strong>Constitution</strong><br />
<strong>for</strong> Scotland (2011), 1 was published. A Model <strong>Constitution</strong> stemmed from<br />
a belief that <strong>the</strong> Scottish constitutional debate needed to be refocused,<br />
away from <strong>the</strong> ‘status question’ of Scotland’s relationship with <strong>the</strong> rest of<br />
<strong>the</strong> United Kingdom, and towards questions of good governance,<br />
democratic participation, citizens’ rights and public values. I argued that<br />
independence alone would not deliver its promised benefits without a<br />
democratic constitutional foundation and that not ‘mere independence’,<br />
but <strong>the</strong> much nobler ideal of a ‘free and civic way of life’, 2 should be, and<br />
indeed long has been, <strong>the</strong> ultimate aim of <strong>the</strong> Scottish national movement.<br />
This perspective is needed now, in <strong>the</strong> wake of <strong>the</strong> referendum, more<br />
than ever be<strong>for</strong>e. Since September 2014 <strong>the</strong>re has been much talk of ‘new<br />
powers’, but almost no discussion of <strong>the</strong> constitutional structures within<br />
which those powers might sit, or of <strong>the</strong> constitutional principles that<br />
might guide and govern <strong>the</strong>ir proper use. The change that was worth<br />
seeking be<strong>for</strong>e <strong>the</strong> referendum was not simply a transfer of power from<br />
one Parliament to ano<strong>the</strong>r; ra<strong>the</strong>r, it was <strong>the</strong> creation of a new and more<br />
democratic constitutional settlement <strong>for</strong> Scotland. In <strong>the</strong> post-referendum<br />
environ ment, when various <strong>for</strong>ms of Home Rule or federalism are<br />
reappearing on <strong>the</strong> medium-term agenda, that desire <strong>for</strong> real constitutional<br />
change is as relevant and as challenging as ever.<br />
I also sought to show that freedom cannot simply be defined in terms<br />
of economic freedom, or individual freedom to act without responsibility<br />
or restraint; such debased notions of freedom belong to tyrants, oligarchs<br />
and outlaws, not to citizens. Freedom in its civic, democratic sense necessarily<br />
includes active membership in a self-governing polity through which<br />
we <strong>the</strong> people deliberate upon and try to discern <strong>the</strong> common good. In<br />
o<strong>the</strong>r words, freedom is defined in terms of ‘democratic voice’, not just<br />
‘market choice’. Democratic citizenship is a communal, not an individualistic,<br />
preoccupation. It is always intimately and intrinsically connected<br />
to a concern <strong>for</strong> social justice, <strong>for</strong> <strong>the</strong> removal of gross inequalities in<br />
material condition and <strong>for</strong> <strong>the</strong> promotion of a good, flourishing life.<br />
13
a constitution <strong>for</strong> <strong>the</strong> common good<br />
Aside from making <strong>the</strong>se general, somewhat normative points, my<br />
intention in writing A Model <strong>Constitution</strong> was a modest one. A Model<br />
<strong>Constitution</strong> never claimed to be <strong>the</strong> final word on <strong>the</strong> subject of what<br />
<strong>for</strong>m a <strong>Constitution</strong> <strong>for</strong> an independent Scotland should take. I simply<br />
wished to help in<strong>for</strong>m public decisions <strong>by</strong> showing readers, most of whom<br />
have no experience of life under a written <strong>Constitution</strong>, and may never<br />
have even seen one, a what a workable, achievable and broadly acceptable<br />
<strong>Constitution</strong> <strong>for</strong> Scotland might look like. I sought nei<strong>the</strong>r to predict nor<br />
to prescribe any particular set of constitutional outcomes, but only to<br />
illustrate general principles <strong>by</strong> way of a ‘worked example’ in order to<br />
encourage more in<strong>for</strong>med public debate and more committed public<br />
action. Judging <strong>by</strong> <strong>the</strong> comments I have received from readers and from<br />
my experience of attending public meetings in my capacity as Research<br />
Director of <strong>the</strong> <strong>Constitution</strong>al Commission, <strong>the</strong> book fulfilled <strong>the</strong>se intentions<br />
with some success.<br />
Over <strong>the</strong> last few years, I have had opportunities to discuss A Model<br />
<strong>Constitution</strong> with Scottish Cabinet ministers, members of <strong>the</strong> Scottish<br />
Parliament (from several parties), civil servants, academics in <strong>the</strong> fields of<br />
politics and public law, and members of leading civil society organisations.<br />
I have also presented <strong>the</strong> Model <strong>Constitution</strong> at many public meetings,<br />
and have learnt much from listening to citizens who, although <strong>the</strong>y might<br />
have previously had no particular interest in constitutional affairs, have<br />
come to recognise that a <strong>Constitution</strong> is key to realising <strong>the</strong>ir desire to live<br />
in a better Scotland. More recently, through my work with <strong>the</strong> International<br />
Institute <strong>for</strong> Democracy and Electoral Assistance, I have been<br />
able to engage with people working on constitution-building processes in<br />
emerging democracies. These experiences have continued to refine my<br />
thinking about what sort of <strong>Constitution</strong> would be needed in Scotland, as<br />
a<br />
In this book, following <strong>the</strong> conventional usage of almost all democracies outside <strong>the</strong><br />
United Kingdom, <strong>the</strong> word ‘<strong>Constitution</strong>’ refers always to a supreme law that, as a<br />
minimum: (i) defines <strong>the</strong> state; (ii) regulates its major political institutions and<br />
processes; (iii) protects civil liberties and fundamental human rights; (iv) is binding on<br />
all institutions of <strong>the</strong> state, including Parliament itself; and (iv) can be amended only<br />
<strong>by</strong> a special process, usually requiring a broader consensus than that required <strong>for</strong> <strong>the</strong><br />
enactment of ordinary legislation. The uk, in this sense of <strong>the</strong> word, has no ‘constitution’<br />
at all, and <strong>the</strong> idea of an ‘unwritten, unentrenched, unen<strong>for</strong>ceable constitution’<br />
is oxymoronic.<br />
14
introduction<br />
well as challenging some of my previous assumptions on <strong>the</strong> boundaries<br />
of constitutional possibility.<br />
A Model <strong>Constitution</strong> concerned itself mainly with <strong>the</strong> institutional<br />
mechanics of a <strong>Constitution</strong> <strong>for</strong> Scotland. It discussed how to elect <strong>the</strong><br />
First Minister, <strong>the</strong> powers of <strong>the</strong> Presiding Officer, <strong>the</strong> appointment of<br />
judges, <strong>the</strong> workings of <strong>the</strong> electoral system, <strong>the</strong> composition of <strong>the</strong> Electoral<br />
Commission, <strong>the</strong> process of enacting legislation, <strong>the</strong> rules concerning <strong>the</strong><br />
dissolution of Parliament, different types of referendum, and o<strong>the</strong>r institutional<br />
matters concerning <strong>the</strong> <strong>for</strong>m and structures of government. However,<br />
a number of difficult and controversial substantive issues (such as <strong>the</strong><br />
relation of <strong>the</strong> state to religion, or <strong>the</strong> statement of values and principles<br />
in a preamble) were omitted, or covered only briefly. In some cases this<br />
omission was due to constraints of space and time, in o<strong>the</strong>rs because I had<br />
not yet come to fully recognise <strong>the</strong>ir salience.<br />
With increasing calls <strong>for</strong> a United Kingdom-wide constitutional settlement,<br />
a and Scotland’s place within or relationship to <strong>the</strong> United Kingdom<br />
still very much in question after <strong>the</strong> independence referendum, now is an<br />
opportune time to reflect self-critically upon A Model <strong>Constitution</strong>, to update<br />
<strong>the</strong> reader on recent developments, and also to discuss questions of content,<br />
context and process that were not fully addressed in <strong>the</strong> earlier work.<br />
This book takes a step back from institutional engineering to discuss<br />
<strong>the</strong> cultural, political and social considerations of constitutionalism. It<br />
marks a shift in emphasis from <strong>the</strong> letter of <strong>the</strong> <strong>Constitution</strong> to <strong>the</strong> spirit.<br />
Whereas A Model <strong>Constitution</strong> focused on <strong>the</strong> dry bones of ‘rules and<br />
rights’ in <strong>the</strong> <strong>Constitution</strong>, as <strong>the</strong>y might feature in <strong>the</strong> work of politicians,<br />
civil servants or lawyers, this book also shows how <strong>the</strong> living flesh of <strong>the</strong><br />
<strong>Constitution</strong> – reflecting our values, rein<strong>for</strong>cing our aspirations, and<br />
resonating in our hearts – can be relevant to <strong>the</strong> everyday lives of ordinary<br />
citizens.<br />
a<br />
The Political and <strong>Constitution</strong>al Re<strong>for</strong>m Committee of <strong>the</strong> House of <strong>Common</strong>s has<br />
even gone so far as to publish a draft <strong>Constitution</strong> <strong>for</strong> <strong>the</strong> United Kingdom <strong>for</strong><br />
discussion. This is a very centralising text, which would significantly reduce <strong>the</strong> powers<br />
of <strong>the</strong> Scottish Parliament, but it is at least a technically sound draft that reflects <strong>the</strong><br />
basic principles of constitutional democracy. The text of <strong>the</strong> draft constitution is<br />
contained in <strong>the</strong> committee’s Second Report, dated 3 July 2014: www.publications.<br />
parliament.uk/pa/cm201415/cmselect/cmpolcon/463/46302.htm<br />
15
a constitution <strong>for</strong> <strong>the</strong> common good<br />
This book is written <strong>for</strong> four groups of people. Firstly, it is addressed<br />
to supporters of independence or substantially increased autonomy <strong>for</strong><br />
Scotland who are unconvinced <strong>by</strong>, or uncommitted to, <strong>the</strong> principle of a<br />
written <strong>Constitution</strong>. It hopes to convince <strong>the</strong>se people that <strong>the</strong> promise of<br />
‘more powers’ would not deliver <strong>the</strong>ir expected social, political, economic<br />
and cultural gains without a commitment to democracy, human rights and<br />
good governance, underpinned <strong>by</strong> a strong <strong>Constitution</strong>. Secondly, it is<br />
addressed to those who wish to see progressive political change, notably<br />
in <strong>the</strong> areas of constitutional and institutional re<strong>for</strong>m, but who see Britain<br />
through a Westminster-centric lens; I wish to show this group that, given<br />
<strong>the</strong> chronic structural failures of democracy <strong>the</strong> United Kingdom, a bit more<br />
devolution here and <strong>the</strong>re is not going to do <strong>the</strong> job. Thirdly, I have in<br />
mind those who are already committed to independence or substantial<br />
autonomy and to a new constitutional settle ment, and who wish to explore<br />
<strong>the</strong> ways and means of constitution-building in more detail. I hope that this<br />
group will benefit from <strong>the</strong> expanded treatment of <strong>the</strong> issues of substance<br />
and process that were not covered, or were only briefly discussed, in A<br />
Model <strong>Constitution</strong>. Finally, this book also hopes to make a modest<br />
<strong>the</strong>oretical contribution to public and academic discussion of constitutions,<br />
in terms of <strong>the</strong> relation of ‘charter’ to ‘covenant’, that will be of<br />
interest to people outside Scotland and <strong>the</strong> United Kingdom, whatever<br />
trajectory we take.<br />
Going beyond <strong>the</strong> institutional focus of my earlier work, this book<br />
considers <strong>the</strong> wider aims, purposes, nature and scope of a <strong>Constitution</strong>,<br />
particularly as it relates to democracy, pluralism and <strong>the</strong> common good.<br />
The central problems of authoritarian backsliding, incumbent manipulation<br />
and corruption that any good <strong>Constitution</strong> must guard against, as<br />
well as <strong>the</strong> issues of identity, values and public ethics that any <strong>Constitution</strong><br />
is required to address, will continue to face us whe<strong>the</strong>r we carry a Scottish<br />
or a British passport. The <strong>the</strong>mes and ideas discussed in <strong>the</strong> book are<br />
<strong>the</strong>re<strong>for</strong>e of direct and immediate relevance to Scottish citizens, and to<br />
people throughout <strong>the</strong> United Kingdom, as we go about <strong>the</strong> difficult<br />
process of <strong>for</strong>ging a new constitutional order <strong>for</strong> ourselves, whe<strong>the</strong>r this<br />
happens to be in <strong>the</strong> context of an independent Scotland, in an autonomous<br />
Scotland trying to protect and improve itself through constitutional<br />
guarantees, or in a United Kingdom that finds <strong>the</strong> courage and ingenuity<br />
needed to reconstitute itself as a federation of free and equal nations.<br />
16
introduction<br />
Much of this book is devoted to <strong>the</strong> problem of how to reflect common<br />
values and promote <strong>the</strong> common good while preserving <strong>the</strong> diversity of a<br />
free and open society. It argues <strong>for</strong> a ‘civic constitutionalism’. This differs<br />
from <strong>the</strong> liberal tradition in recognising that <strong>the</strong>re is a ‘common good’ in<br />
society, and that a democratic state is required to play an active, positive<br />
role in <strong>the</strong> attainment of <strong>the</strong> common good. However, it does not accept<br />
<strong>the</strong> illiberal and utopian notion that <strong>the</strong>re is any single, abstract, and<br />
universally evident expression of <strong>the</strong> common good to be discovered and<br />
imposed <strong>by</strong> a virtuous minority or <strong>by</strong> an arcane priesthood of ideological<br />
visionaries. Instead, <strong>the</strong> common good is recognised as existing in a<br />
contin gent and ephemeral way; it is discovered as a result of pragmatic<br />
agreements arising from political participation, deliberation and negotiation.<br />
This applies: (i) generally, to <strong>the</strong> common good of society as a whole,<br />
which is <strong>the</strong> underlying aim of <strong>the</strong> common weal; and (ii) specifically, in<br />
relation to each policy decision.<br />
If freedom from tyranny and oppression is essential to human flourishing,<br />
and if <strong>the</strong> common good is to be discovered and sustained through<br />
public deliberation, it follows that <strong>the</strong>re must be freedom of conscience,<br />
association, discussion and political action, and that no one person, nor<br />
any particular group of people, should hold preponderant power in <strong>the</strong><br />
state. The primary requirement of a good <strong>Constitution</strong>, <strong>the</strong>n, is that it<br />
should protect fundamental human rights and democratic processes, and<br />
thus facilitate an open, pluralistic, deliberative politics under <strong>the</strong> rule of<br />
law. Yet this is not <strong>the</strong> only requirement. As well as being a legal charter,<br />
through which our rights are protected and under which our public<br />
institutions operate, a <strong>Constitution</strong> also embodies a national covenant.<br />
Without eroding or denying our many differences, it declares <strong>the</strong> promises<br />
that we make to one ano<strong>the</strong>r as fellow citizens, declares <strong>the</strong> commonly<br />
agreed standards that we are determined to uphold in our public life, and<br />
so expresses our commitment not only to <strong>the</strong> rights and institutions, but<br />
also to <strong>the</strong> values and mores of <strong>the</strong> res publica.<br />
The purpose of <strong>the</strong> <strong>Constitution</strong>, according to this understanding, is<br />
not to impose one single view of <strong>the</strong> common good on <strong>the</strong> whole of society<br />
(in contrast, <strong>for</strong> example, to <strong>the</strong> ideological constitutions of Soviet republics,<br />
or <strong>the</strong> <strong>the</strong>ological constitutions of Islamic republics), but to reflect deep<br />
and enduring public agreements about <strong>the</strong> common good (its ‘covenantal’<br />
17
a constitution <strong>for</strong> <strong>the</strong> common good<br />
function) while ‘holding <strong>the</strong> ring’ <strong>for</strong> public decision-making on how to<br />
resolve particular policy decisions (its ‘charter’ function).This requires a<br />
robust constitutional structure that: (i) protects against <strong>the</strong> manipulation<br />
of <strong>the</strong> rules <strong>by</strong> incumbents, guards against authoritarian tendencies,<br />
protects <strong>the</strong> rights of dissent and contestation through well-defended civil<br />
liberties, promotes good governance, defines <strong>the</strong> ethical standards of a<br />
healthy public life, and (ii) articulates <strong>the</strong> shared common values and <strong>the</strong><br />
baselines of human flourishing which enhance <strong>the</strong> well-being of all<br />
citizens. This argument, toge<strong>the</strong>r with its consequences <strong>for</strong> constitutional<br />
design, is a recurring <strong>the</strong>me of this book.<br />
Chapter One explains why <strong>the</strong> constitutional question was so integral<br />
to <strong>the</strong> Scottish independence debate and why it remains integral to <strong>the</strong><br />
debate about Scotland’s future, whatever <strong>the</strong> extent of our relationship to<br />
<strong>the</strong> rest of <strong>the</strong> United Kingdom. ‘More powers’ or even ‘full powers’ <strong>for</strong><br />
a Scottish Parliament would be of limited use or benefit if not backed <strong>by</strong><br />
a clear commitment to democracy, good governance, human rights and<br />
public values. A newly added section discusses approaches to consti tutionalism<br />
in a sovereign and self-governing but non-independent Scotland,<br />
ei<strong>the</strong>r through a federal United Kingdom or <strong>by</strong> means of a new Treaty of<br />
Union or an autonomous ‘Home Rule’ <strong>Constitution</strong> <strong>for</strong> Scotland.<br />
Chapter Two roots <strong>the</strong> constitutional project in a commitment to <strong>the</strong><br />
common good. It makes <strong>the</strong> case <strong>for</strong> an open and pluralist democratic<br />
politics, in which various competing concepts of <strong>the</strong> common good can be<br />
expressed. This need not, however, necessarily result in a blind, purpose less<br />
‘constitution without values’. On <strong>the</strong> contrary, an open, pluralist and<br />
democratic view of <strong>the</strong> common good – as something to be discovered<br />
and determined through public deliberation – requires citizens to strive<br />
<strong>for</strong> a broad consensus not only on basic rights and ground rules, but also<br />
on <strong>the</strong> ethics, norms and values which will shape public life and enable<br />
<strong>the</strong> common good to be realised.<br />
Chapter Three considers <strong>the</strong> extent, nature and purpose of <strong>the</strong> <strong>Constitution</strong>.<br />
Two contrasting elements of, or approaches to, a <strong>Constitution</strong> are<br />
presented: <strong>the</strong> procedural ‘charter’ and <strong>the</strong> directive or prescriptive ‘covenant’.<br />
The term ‘charter’ refers to <strong>the</strong> set of rights and rules that structure<br />
political activity (‘<strong>the</strong> rules of <strong>the</strong> state’), whereas <strong>the</strong> term ‘covenant’ refers<br />
to <strong>the</strong> ethical statements and values that shape politics (‘<strong>the</strong> spirit of <strong>the</strong><br />
18
introduction<br />
country’). These distinctions cut across typical institutional categorisa tions,<br />
such as whe<strong>the</strong>r a state is unitary or federal, has one or two legislative<br />
chambers, uses a proportional or majoritarian electoral system, or has a<br />
prime ministerial or presidential executive. In exploring <strong>the</strong> distinction<br />
between <strong>the</strong>se two constitutional approaches and understanding <strong>the</strong><br />
connection between <strong>the</strong>m, many <strong>the</strong>oretical and practical problems of<br />
constitutional design can be clarified. While both approaches are integral<br />
to <strong>the</strong> whole – a <strong>Constitution</strong> is both ‘charter’ and ‘covenant’, specific<br />
‘charter elements’ and ‘covenant elements’ can be expressed and en<strong>for</strong>ced<br />
in different ways, and to different extents, on a pragmatic basis, depending<br />
on <strong>the</strong> needs and aspirations of each society at a given time.<br />
Chapters Four to Eight discuss <strong>the</strong> application of <strong>the</strong>se general<br />
principles to <strong>the</strong> institutional and substantive provisions of a <strong>Constitution</strong>,<br />
whe<strong>the</strong>r <strong>for</strong> an independent Scotland, <strong>for</strong> an autonomous Scotland within<br />
<strong>the</strong> shell-state of <strong>the</strong> United Kingdom, or <strong>for</strong> a federal United Kingdom.<br />
This discussion includes questions of public participation and democratic<br />
quality (Chapter Four), accountability mechanisms (Chapter Five), issues<br />
of identity, religion and nationhood (Chapter Six), social and economic<br />
justice (Chapter Seven), and public ethics (Chapter Eight).<br />
Finally, Chapter Nine considers <strong>the</strong> constitution building process. It<br />
charts a potential roadmap towards <strong>the</strong> establishment of a new constitutional<br />
order <strong>for</strong> Scotland, whe<strong>the</strong>r as part of a re<strong>for</strong>med United Kingdom<br />
or o<strong>the</strong>rwise. Drawing on experiences from o<strong>the</strong>r parts of <strong>the</strong> world, it<br />
argues that <strong>the</strong> process of constitution making is as at least as important<br />
as <strong>the</strong> textual outcome, and that a well-structured, inclusive and consensual<br />
process is <strong>the</strong> best basis <strong>for</strong> a stable democratic future.<br />
In summary, this book argues that if we wish to enjoy a flourishing life<br />
in a free and socially just Scotland (whe<strong>the</strong>r Scotland is an independent<br />
state or an autonomous state within a loosely federated United Kingdom)<br />
<strong>the</strong>n we need a ‘<strong>Constitution</strong> <strong>for</strong> everyone’: a <strong>Constitution</strong> that is directed<br />
towards <strong>the</strong> common good of all its people, not towards <strong>the</strong> particular<br />
privileges of <strong>the</strong> rich, powerful and influential. Such a <strong>Constitution</strong> would<br />
facilitate all citizens to engage in an open and pluralist democratic process<br />
through which <strong>the</strong> common good – in all its plurality and variability,<br />
nuance and flexibility – can be identified and defended.<br />
19